Eagle's View Professional Park Condominium Unit Owners Assn., Inc. v. EVPP, L.L.C. , 2014 Ohio 565 ( 2014 )

[Cite as Eagle's View Professional Park Condominium Unit Owners Assn., Inc. v. EVPP, L.L.C., 2014-Ohio-565.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
EAGLE'S VIEW PROFESSIONAL PARK :
CONDOMINIUM UNIT OWNERS CASE NO. CA2013-07-132
ASSOCIATION, INC., :
OPINION
Plaintiff-Appellee, : 2/18/2014
:
- vs -
:
EVPP, LLC, et al., :
Defendants-Appellants. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2011-10-3837
Cuni, Ferguson & LeVay Co., L.P.A., Lisa M. Conn, 10655 Springfield Pike, Cincinnati, Ohio
45215, for plaintiff-appellee
Rex A. Wolfgang, 246 High Street, Hamilton, Ohio 45011, for defendants-appellants, EVPP
and Robert R. Rockenfield
Paul T. Saba, 2623 Erie Avenue, Cincinnati, Ohio 45208, for defendant, Stock Yards Bank &
Trust Co.
Graydon Head & Ritchey LLP, J. Michael Debbeler, Cara R. Hurak, 1900 Fifth Third Center,
511 Walnut Street, Cincinnati, Ohio 45202, for intervenors, Michael Yoakum, Mark Schroder,
Thomas Sullivan, Michael White, Chris Eubank and Chris Boerger
RINGLAND, J.
{¶ 1} Defendants-appellants, EVPP, LLC (EVPP) and Robert R. Rokenfield, appeal a
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decision of the Butler County Court of Common Pleas in favor of plaintiff-appellee, Eagle's
View Professional Park Condominium Unit Owner's Association, Inc. (Association), and
intervenors-appellees, Michael Yoakum, Mark Schroder, Thomas Sullivan, Michael White,
Chris Eubank, and Chris Boerger (collectively, the purchasers), which ordered appellants to
comply with an extra-judicial "Right to Sell Agreement" (Agreement) and close on the sale of
certain properties. For the reasons outlined below, we dismiss this appeal for lack of a final
appealable order.1
{¶ 2} This case began as a foreclosure action. The Association maintains and
operates Eagle's View Professional Park, a multi-building, multi-unit professional
2
condominium development. EVPP, a member of the Association, owns 16 units in the
Eagle's View Professional Park (hereineafter referred to as the properties). On October 31,
2011, the Association filed a foreclosure complaint against EVPP to foreclose on liens for
unpaid condominium assessments. The complaint also named Stock Yards Bank and Trust
Company (Stock Yards) as a defendant as it held a mortgage on the subject properties.
Stock Yards answered the Association's complaint and filed its own cross-claim in
foreclosure and a third-party complaint against Robert Rockenfield.3 Rockenfield is the
"Member/Manager" of EVPP, and he personally guaranteed EVPP's loans to Stock Yards.
As to EVPP, Stock Yards requested judgment on the note and that the properties be
foreclosed. With regards to Rockenfield, EVPP requested judgment against Rockenfield in
the full amount of the debt.
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the
regular calendar for purposes of issuing this opinion.
2. Eagle's View Professional Park Condominium Unit Owner's Association is now known as Fairfield
Professional Park Condominium Unit Owner's Association, Inc.
3. In its pleading, Stock Yards designated its claim against Rockenfield as a counterclaim, however, we note
that Stock Yards' claim against Rockenfield is more properly designated as a third-party complaint.
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{¶ 3} Ultimately, on October 26, 2012, a decree in foreclosure was filed by way of an
agreement. The Association and EVPP entered into an "Agreed Final Appealable
Judgment/Order" which granted judgment in favor of the Association for unpaid assessments
and attorney fees and ordered foreclosure of the properties and a subsequent sale. The
Entry also determined the priority of the liens on the property.
{¶ 4} Thereafter, EVPP, the Association, and Stock Yards entered into a "Right to
Sell Agreement" which provided that the properties would be sold at a public auction by a
private auctioneer, rather than at a sheriff's sale. The following terms for the sale were also
agreed upon by the parties: a $500 budget to advertise for the auction; the properties would
be sold without a minimum bid; and the properties would be sold without a reserve. In
addition, the Association agreed to release its liens on the properties in exchange for $5,000
to be paid at the closing of the sales. Stock Yards also agreed to release its mortgage upon
"receipt of total gross sale proceeds less tax proration and the $5,000 payment to the
Association."
{¶ 5} The auction was conducted on December 8, 2012. The properties were
purchased at this auction by intervening appellees-purchasers. Purchase contracts were
subsequently entered into for each of the properties. In an effort to avoid the sales, EVPP
filed a Chapter 11 bankruptcy petition. On June 4, 2013, the United States Bankruptcy Court
Southern District of Ohio Western Division dismissed the bankruptcy petition as having been
filed in bad faith.
{¶ 6} Thereafter, on June 26, 2013, the Association filed a motion to compel, which is
the subject of the present appeal. In its motion to compel, the Association asserted that
EVPP refused to close on the sale of the properties pursuant to the purchase contracts that
were entered into as a result of the agreed upon December 8, 2012 auction. The Association
requested the court to order "EVPP, LLC's performance and to enforce the subject Right to
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Sell Agreement by compelling [EVPP] to close on the sale of the properties" to the
purchasers. On June 27, 2013, the purchasers of the units filed a motion to intervene, as
well as a memorandum in support of the motion to compel. The court granted purchasers'
motion to intervene and accepted their memorandum in support of the motion to compel.4
{¶ 7} EVPP failed to timely respond to the motion to compel, and on July 26, 2013,
the court granted the Association's motion and ordered the following:
[1.] On or before July 31, 2013, Defendant EVPP, LLC shall take
any and all action, including executing documents reasonably
required to close the sale of the properties purchased at the
December 8, 2012 private auction that is the subject of this
Motion to Compel by * * * (the "Purchasers");
[2.] If EVPP, LLC fails to close the sale of the properties * * *
then EVPP, LLC and the sole member of EVPP, LLC, Robert
Rockenfield, shall be automatically held in contempt of this Court
upon notice to this Court that the sale of any of the subject
properties has not closed for no fault of the Purchasers. The
Court may issue such further orders on contempt as are
required.
{¶ 8} EVPP and Rockenfield now appeal the decision by the trial court ordering them
to close on the sale of the properties to purchasers. EVPP and Rockenfield assert one
assignment of error for our review.
{¶ 9} Assignment of Error No. 1:
{¶ 10} DOES A TRIAL COURT HAVE SUBJECT MATTER JURISDICTION TO
ORDER COMPLIANCE WITH EXTRA-JUDICIAL SALES AND LISTING CONTRACTS THAT
WERE ENTERED INTO AFTER A FINAL APPEALABLE ORDER?
{¶ 11} In their sole assignment of error, appellants assert the trial court lacked subject
matter jurisdiction to order them to comply with the "Right to Sell Agreement" and finalize the
sales to the purchasers. Appellants maintain the trial court's jurisdiction terminated months
4. EVPP and Rockenfield failed to timely respond to the purchasers' motion to intervene.
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earlier, when the "Agreed Final Appealable Judgment/Order" was filed. In addition, appellants
argue the trial court lacked jurisdiction to enforce the agreement because the agreement was
not entered into the record or adopted as a court order.
{¶ 12} Before we address the merits of the instant appeal, we must first determine
whether this court has jurisdiction to rule on this appeal. Both the Association and the
purchasers urge this court to dismiss the appeal for a lack of a final, appealable order. After
a review of the record and without making any determination as to the merits of appellants'
sole assignment of error, we find that the order from which appellants appeal is not a final
appealable order.
{¶ 13} Appellate courts have jurisdiction over judgments or final orders of inferior
courts within their district. Section 3(B)(2), Article IV, Ohio Constitution, and R.C. 2505.03(A).
If an order is not final and appealable, then we have no jurisdiction to review the matter and
must dismiss the appeal. Carpenter v. Carpenter, 12th Dist. Butler No. CA2013-05-083,
2013-Ohio-4980, ¶ 8.
{¶ 14} To be a final and appealable order, a judgment entry must meet the
requirements of R.C. 2505.02, and if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent
State Univ., 44 Ohio St.3d 86 (1989), syllabus. Civ.R. 54(B) applies to actions involving
multiple claims and multiple parties. If the court enters judgment as to some, but not all, of
the claims and/or parties, the judgment is not a final appealable order, unless it satisfies
Civ.R. 54(B) by including the language that "there is no just reason for delay." Gen. Acc. Ins.
Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 22 (1989); Stealth Investigations, Inc. v. Mid-
Western Auto Sales, Inc., 12th Dist. Butler No. CA2009-08-216, 2010-Ohio-327, ¶ 9, citing
Internatl. Bhd. of Electric Workers, Local Union No. 8 v. Vaughn Indus., LLC, 116 Ohio St.3d
335, 2007-Ohio-6439, ¶ 7.
{¶ 15} Civ. R. 54(B) provides:
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When more than one claim for relief is presented in an action
whether as a claim, counterclaim, cross-claim, or third-party
claim, and whether arising out of the same or separate
transactions, or when multiple parties are involved, the court may
enter final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there
is no just reason for delay. In the absence of a determination that
there is no just reason for delay, any order or other form of
decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties,
shall not terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to revision at
any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.
"In absence of express Civ.R. 54(B) language, an appellate court may not review an order
disposing of fewer than all claims." Stealth Invest., Inc. at ¶ 11, quoting Internatl. Bhd. at ¶ 8.
{¶ 16} In the instant case, the July 26, 2013 order which appellants now appeal is not
a final appealable order as it fails to fully dispose of all the claims and parties below and it
does not include Civ.R. 54(B) language. See Stealth Invest., Inc. at ¶ 11. As set forth above,
Stock Yards filed a cross-claim against EVPP based on its default on the note, as well as a
claim against Rockenfield, individually, based on his personal guarantee for the loans to
EVPP. There is no indication in the record that Stock Yards has dismissed any of its claims
against EVPP or Rockenfield, or that the claims have been otherwise resolved by the parties.
The trial court's order does not reference any of these claims by Stock Yards. It simply
grants the Association's motion to compel EVPP to complete the sale of the properties to the
purchasers. As such, the trial court failed to enter judgment as to all the parties and all the
claims so as to dispose of the entire action. Furthermore, the July 26, 2013 order contains
no Civ.R. 54(B) language. Accordingly, as the order fails to dispose of all claims and all
parties and does not include a Civ.R. 54(B) certification, the order is not final and appealable.
{¶ 17} Appellants' appeal is therefore dismissed due to lack of a final appealable
order.
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{¶ 18} Appeal dismissed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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